United States v. Gerald Bernard Ford , 182 F. App'x 956 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 31, 2006
No. 05-16327 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00262-CR-2-LSC-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD BERNARD FORD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 31, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Gerald Bernard Ford appeals his 24-month sentence imposed after
revocation of his supervised release, pursuant to 18 U.S.C. § 3583(e). After
review, we affirm.
I. BACKGROUND
Ford was convicted of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). Ford was sentenced to 12 months’ imprisonment and
three years’ supervised release. Ford had a history of substance abuse, and much
of his criminal history stemmed from alcohol and drug-related offenses. Ford had
tested positive for cocaine while on bond awaiting his sentencing. Thus, the
conditions of Ford’s supervised release included that he not commit another
federal, state or local crime, that he not possess or use a controlled substance and
that he participate in the Drug and Alcohol Intensive Counseling and Aftercare
Service Program.
Three months after Ford’s supervised release began, his probation officer
petitioned the district court to revoke his release on two grounds: (1) Ford had been
arrested on two state misdemeanor charges, and (2) Ford had admitted to using
cocaine and marijuana.
At the revocation hearing, Ford admitted the violations, and the district court
found that Ford had violated the conditions of his release. The probation officer
recommended a five-month sentence followed by six months in a halfway house to
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receive drug treatment. The district court, however, noted that, if Ford was
sentenced to the statutory maximum of 24 months’ imprisonment, he would be
eligible for the 500-hour intensive inpatient drug treatment program offered by the
Bureau of Prisons (“BOP”). The probation officer described the 500-hour program
as “probably the most comprehensive and extensive program that [is] available
within [the] system.”
Noting Ford’s history of substance-abuse-related offenses, the district court
stated that it wanted the best sentencing option to keep Ford off drugs so he would
stop offending. The district court asked Ford whether he was presently “clean” or
“dirty.” Ford responded that he was “clean” for both cocaine and marijuana. The
district court recessed so that a drug test could be conducted. The test came back
positive for cocaine. Ford did not contest this finding.
When the revocation hearing resumed, the district court stated that, because
Ford had lied to the court, had failed to participate in the drug treatment offered
during his release and had a history of substance-abuse crimes, it saw no reason not
to impose a 24-month sentence and reiterated that it wanted Ford to get drug
treatment. Because Ford committed Grade C violations and had a criminal history
category of III, the district court concluded that the applicable advisory Guidelines
range was 5 to 11 months’ imprisonment.
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The district court then imposed a 24-month sentence with the
recommendation that Ford be evaluated and allowed to participate in the 500-hour
program. When Ford asked for reconsideration, the district court stated that a 24-
month sentence was the best way to accomplish the goals of keeping Ford from
committing more offenses and providing him with drug abuse treatment. Ford
filed this appeal.
II. DISCUSSION
Upon finding that a defendant violated a condition of supervised release, the
district court may revoke the term of supervised release and impose a term of
imprisonment after considering various factors set forth in 18 U.S.C. § 3553(a).1
18 U.S.C. § 3583(e). A court may consider a defendant’s rehabilitative needs
when imposing imprisonment following revocation of supervised release. United
States v. Brown, 224 F.3d 1237, 1242 (11 th Cir. 2000) (concluding that imposition
of statutory maximum prison sentence in order for defendant to get in-house drug
treatment was not an abuse of discretion). The sentencing court “shall state in
open court the reasons for its imposition of a particular sentence, and, if the
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Factors the district court must consider include the nature and circumstances of the
offense; the history and characteristics of the defendant; the need for the sentence imposed to
afford adequate deterrence to criminal conduct, protect the public from further crimes of the
defendant, and provide the defendant with needed correctional treatment in the most effective
manner; and the kinds of sentences and sentencing ranges established under the applicable
guidelines and policy statements issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(1),
(2)(B)-(D), (4)(B).
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sentence . . . is not of the kind, or is outside the [guideline] range, . . . the specific
reason for imposition of a sentence different from that described . . . .” 18 U.S.C.
§ 3553(c)(2).
The district court must also consider the policy statements in Chapter 7 of
the Sentencing Guidelines, one of which provides recommended ranges of
imprisonment. Brown, 224 F.3d at 1242. Because these policy statements are
advisory and nonbinding, the district court is not required to sentence within the
range recommended by Chapter 7. Id. The district court is constrained, however,
by 18 U.S.C. § 3583(e), which provides maximum sentences for supervised release
violators.2
With Grade C violations and a criminal history category of III, Ford’s
recommended Guidelines range under advisory Chapter 7 was 5 to 11 months’
imprisonment. See U.S.S.G. § 7B1.4(a). Because Ford’s original offense was a
Class C felony, his maximum statutory term of imprisonment upon revocation of
supervised release was two years. See 18 U.S.C. § 3583(e)(3).
Under the factual circumstances of this case, we conclude that the district
2
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006) (explaining
that the reasonableness standard applied after United States v. Booker, 543 U.S. 220, 125 S. Ct.
738 (2005), is essentially the same as the pre-Booker “plainly unreasonable” standard). We
review for abuse of discretion a district court’s decision to impose a sentence above the range
recommended by Chapter 7 of the Sentencing Guidelines. Brown, 224 F.3d at 1239.
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court’s decision to sentence Ford outside the advisory Guidelines range was not an
abuse of discretion and that Ford’s two-year sentence was not unreasonable. The
district court gave reasons supported by the record, including Ford’s need for drug
treatment, for imposing a sentence above the recommended range, as required by §
3553(c)(2). See Brown, 224 F.3d at 1240 & n.1(concluding that district court may
properly consider supervised release violator’s need for drug treatment in
determining length of sentence). The district court also considered the § 3553(a)
factors in selecting a two-year sentence, including Ford’s characteristics and
history of drug abuse and drug-related crimes, the need for deterrence, the need to
protect the public from further crimes by Ford, and the most effective manner of
obtaining drug treatment for Ford.
Ford’s argument that the district court imposed a sentence less likely to
obtain drug treatment for him is not supported by the record. Indeed, it appears
more likely that Ford will get effective drug treatment with the sentence imposed
by the district court. The probation officer stated that the BOP’s 500-hour program
was the most comprehensive and extensive within the prison system. As noted,
Ford had failed to attend the outpatient treatment required as part of his supervised
release and had been using drugs while on supervised release.3 Furthermore, the
3
In addition, the district court expressed concern about imposing a sentence below 24
months because, if Ford again violated the terms of his supervised release, the available sentence
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choice between the two treatment alternatives was within the district court’s
discretion.
We affirm Ford’s two-year sentence.
AFFIRMED.
would be under 24 months, which would make Ford ineligible for the 500-hour program.
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